Bashira Vs. State of U.P  INSC
112 (19 April 1968)
19/04/1968 BHARGAVA, VISHISHTHA BHARGAVA,
VISHISHTHA SIKRI, S.M.
CITATION: 1968 AIR 1313 1968 SCR (1) 32
F 1971 SC 260 (14) MV 1973 SC 786 (22) F 1977
SC 740 (10)
Constitution of India, 1950, Art. 21--Accused
tried for offence of murder--criminal Procedure Code (Act 5 of 1898), s. 340
and Rules made by the High Court, r. 37 Counsel appointed by Sessions Court for
defending accused--Not given enough time to prepare defence--If violative of
The appellant was charged with the offence of
murder under s. 302 IPC. Just before the beginning of the trial, the Sessions
Court appointed an advocate as amicus curiae to represent the appellant. After
the examination of witnesses, on the day on which the case was posted for
argument, appellant's counsel prayed for the recall of the sole eyewitness for
further cross-examination as the witness could not be cross-examined
effectively. The application was rejected, and after hearing arguments, the
court convicted the appellant and sentenced him to death. The conviction and
sentence were confirmed by the High Court.
in appeal to this Court, it was contended
that the belated appointment of counsel deprived the appellant of adequate
legal aid and that he would be deprived of his life in breach of his
fundamental right under Art. 21.
HELD: The right on which the accused based
his claim is based on r.37 of the General Rules (Criminal) 1957, promulgated by
the High Court in exercise of its powers under Art. 227 of the Constitution and
s. 554 of the Criminal Procedure Code.
Therefore, the rule is a statutory rule and
forms part of the procedure for trial of criminal cases. Its intention is that
no accused person should remain unrepresented by a lawyer if he is being tried
on a charge for which a capital sentence can be awarded. Notwithstanding the
use of the word 'may'. considering the purpose of the rule, it must be
interpreted as laying down a mandatory direction to the Court to engage a
counsel if the conditions laid down therein are satisfied. As the rule
supplements the provision contained in s. 304 Cr. P.C. under which such
appointment of counsel is not mandatory, it is not in conflict with the
section. The last clause of the rule requires that the council appointed under
the Rules shall be furnished with necessary papers free of cost and allowed
sufficient time to prepare for the defence. [35D-E; 36-E; 3B, D, E-F] In the
present case, when the counsel was appointed just before the trial started,
there was a failure to comply with the requirements of the rule. Even though
counsel did not ask for time it was the duty of the court, under the rule, to
grant sufficient time to counsel, and, when sufficient time was not granted to
counsel to prepare the defence, prejudice must necessarily be inferred and the
trial held vitiated. Further, as the word 'law' in Art. 21 includes subordinate
legislation promulgated by delegated authority there is a breach of Art. 21,
and therefore the question of prejudice does not arise. [38C; 40B, G-H; 41B]
Maqbool Hussain v. State of Bombay,  S.C.R. 730, Pandir M. S. M. Sharma
v. Shri Sri Krishna Sinha,  Supp. 1 S.C.R. 806 and Makhan Singh v. State
of Punjab,  4 S.C.R. 797, followed.
33 A. K. Gopalan v. State of Madras, 
S.C.R. 88, 111-112;
Janardan Reddy v. State of Hyderabad, 
S.C.R. 344 and Tara Singh v. The State,  S.C.R. 729, explained.
Re:Alla Nageswara Rao, A.I.R. 1957 A.P. 505
and Mathai Thommen v. State A.I.R. 1959 Kerala 241, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 25 of 1968.
Appeal by special leave from the judgment and
order, dated July 20, 1967 of the Allahabad High Court in Cr. A. No. 469 of
1967 and Ref. No. 21 of 1967.
K. K. Luthra, for the appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by
Bhargava, J. The appellant Bashira was convicted by the Court of Session for
having committed the murder of his own wife Saira alias Mahobawali with an axe
inside his house at about 11 a.m. on 22nd August, 1966. The First Information
Report of this incident was lodged on the same day at 5-15 p.m. by Naziran, the
mother of the appellant, who went to the Police Station accompanied by the Chaukidar.
The investigation of the case began on 23rd August, 1966. The appellant
surrendered himself in Court on 24th August, 1966.
On 15th September, 1966, the Challan was
presented in the Court of the Magistrate who recorded some evidence, proceeded
in accordance with section 207A of the Code of Criminal Procedure, and then, on
28th November, 1966, committed the appellant for trial to the Court of Session
for the offence of committing the murder of his wife punishable under section
302 of the Indian Penal Code. The Temporary Civil & Sessions Judge of
Hamirpur fixed 28th February, 1967 as the date for starting the actual trial of
the case. On that day, before beginning the trial, he appointed one Sri Sirish
Chandra, Advocate, as amicus curiae counsel to represent the appellant. He
amended the charge which was read out to the appellant who pleaded not guilty.
Thereafter, on that very day, evidence of two
principal prosecution witnesses was recorded. The first witness was Smt.
Naziran, the mother of the appellant, who had lodged the F.I.R., and the second
witness was Khan Bahadur, son of the appellant, who was the sole eye-witness of
the incident of murder. The remaining evidence was recorded on 1st March, 1967,
on which date the appellant was also examined under section 342, Cr. P.C. The
appellant stated that be would not produce any defence. A joint application of
counsel for parties was presented on that day requesting the court to make a
local inspection and 12th March, 1967 was fixed for local inspection. The
Temporary Sessions Judge in that order 34 directed that a suitable conveyance
should be arranged for him as he had no conveyance of his own. On 8th March,
1967, the Public Prosecutor gave it in writing that no conveyance could be
arranged and, therefore, prayed that the local inspection may be cancelled. The
Judge cancelled the direction for local inspection and then fixed 10th March,
1967 for arguments. On that day, Sri Shukla, counsel representing the appellant
presented an application praying for the recall of P. W. 2 Khan Bahadur for
further cross examination on the ground that there had been an omission in
drawing his attention to a contradiction with his statement recorded in the
Court of the Committing Magistrate. He added that there were many other things
to be seen and made this request in the interest of justice. The Judge held
that the ground for recall that the witness could not be cross-examined
effectively would hardly justify the recall of the witness for further cross examination.
He further expressed his opinion that, even if the statement attributed to the
witness as having been made by him in the Court of the Committing Magistrate is
brought on the record, it would not help the appellant to any appreciable
degree in his defence. On these grounds, the application was rejected.
Arguments were then heard on the same day and
judgment was delivered on 13th March, 1967, convicting the appellant for the
offence of murder under s. 302, I.P.c and sentencing him to death. The
appellant appealed in the High Court of Allahabad and the Tempe. Sessions Judge
also made a reference for confirmation of the sentence of death. The High Court
dismissed the appeal, accepted the reference and confirmed the sentence of
death. The appellant has now come up to this Court against that judgment of the
High Court in appeal by special leave.
In this case, the principal ground urged on
behalf of the appellant raises an important question of law. Learned counsel
appearing for the appellant emphasised the circumstance that the amicus curiae
counsel to represent the appellant was appointed by the Sessions Judge on the
28th February, 1967, just when the trial was about to begin and this belated
appointment of the counsel deprived the appellant of adequate legal aid, so
that he was unable to defend himself properly. It was urged that the procedure
adopted by the Court was not in accordance with law, so that, if the sentence
of death is carried out, the appellant will be deprived of his life in breach
of his fundamental right under Article 21 of the Constitution which lays down
that no person shall be deprived of his life or personal liberty, except
according to procedure established by law.
The main procedure for trial of a criminal
case is laid down in the Code of Criminal Procedure and, in this case, there is
no grievance that the procedure laid down therein was not followed by the Court
of Session. The grievance, however, is that there 35 are provisions
supplementing the procedure laid down by the Criminal Procedure Code and the
course adopted by the Court of Session was in breach of these supplementary
Reference was made to Rule 37 in Chapter V of
the General Rules (Criminals), 1957 (hereinafter referred to as "the
Rules") promulgated by the High Court of Allahabad in exercise of its
powers under Article 227 of the Constitution and section 554 of the Code of
Criminal Procedure. These Rules were published under Notification No.
241/A/Vlll-a-1, dated September 4, 1956 in the Supplement to the Government
Gazette of Uttar Pradesh, dated 3rd November, 1956. The notification clearly
mentions the powers under which the High Court promulgated the Rules and also
contains a clear recitation that the Rules were being published with the
previous approval of the Government of Uttar Pradesh. We have mentioned these
details, because at one stage it was urged by learned counsel appearing for the
respondent State Government that R. 37 of the Rules had no statutory force at
all. The notification in the Gazette makes it perfectly clear that these Rules
were all framed by the High Court in exercise of the powers conferred on it by
the Constitution or by the Code of Criminal Procedure. The Rules are,
therefore, clearly statutory Rules and, as such they form a part of the
procedure for trial of criminate cases by courts subordinate to the High Court
of Allahabad, in addition to the procedure laid down by the Code of Criminal
Rule 37 of the Rules is as follows "In
case which comes before a Court of Session,
the court may engage counsel to defend the accused person if(a) the charge
against him is such that a capital sentence is possible, and (b) it appears
that he has not engaged counsel and is not possessed of sufficient means to do
To enable the Sessions Court to arrive at a
decision as regards the second condition in the preceding paragraph, the
committing Magistrate shall in such cases make enquiries from the accused at
the time of commitment and after making such other enquiries as may be
necessary, report within a month of the commitment order to the, court to which
the commitment is made whether the accused is possessed of sufficient means to
engage counsel. Each case must be decided on its merits and no hard and fast
rule as to sufficiency of means should be applied. The Sessions Court in making
its decision shall not be bound by the report of the committing magistrate.
36 .lm15 Counsel appointed under this rule
shall be furnished with the necessary papers free of cost and allowed
sufficient time to prepare for the defence." On the basis of the language
used in this Rule, learned counsel for the State urged that this Rule should
not be held to be mandatory, but only a Rule enabling a Court to engage a
counsel to defend a person accused of an offence punishable with capital
sentence. It is true that the word used is "may" in this Rule, but,
in our opinion, the purpose of the Rule will be completely defeated if we were
to accept this submission. It appears that the word "may" was used
only because there are certain conditions laid down, on the existence of which
depends the appointment of the amicus curiae counsel to represent the accused.
The principal precondition is that the accused has himself not engaged a
counsel and is not possessed of sufficient means to do so.
The Rule adds that no hard and fast rule as
to the sufficiency of means should be applied when the court has to decide
whether an amicus curiae counsel should be provided at the cost of the
Government, and each case must be decided on its merits. It was because of
these conditions that the word "may" was used in the Rule; but the
intention of the Rule is perfectly clear that no accused person should remain
totally unrepresented by a lawyer, if he is being tried on a charge for which a
capital sentence can be awarded.
Considering the purpose of this Rule, we hold
that the word "may" in this Rule must be interpreted as laying down a
mandatory direction to the Court to engage a counsel, if the conditions laid
down in the Rule are otherwise satisfied.
In this connection, learned counsel for the
State drew our attention to two decisions of this Court reported in Janardan
Reddy and Others v. The State of Hyderabad and Others and connected Appeals(1),
and Tara Singh v. The State(2). In the first of these two cases, this Court was
considering the effect of section 271 of the Hyderabad Criminal Procedure Code
read along with the Rules and Circular Orders issued by the Hyderabad High
Court and, in that connection, held that, though s. 271 of the Hyderabad Criminal
Procedure Code corresponds to section 340 of the Indian Criminal Procedure
Code, these provisions did not Jay down as a rule of law that in every capital
sentence case, where the accused is unrepresented, the trial should be held to
be vitiated. In the second case, this Court examined the scope of the right
conferred on an accused by S. 340(1) of the Code of Criminal Procedure and held
that it does not extend to a right in an accused person to be provided with a
lawyer by the State or by the Police or by the Magistrate.
The Privilege conferred by this provision
only gave a right to an accused to be represented by a counsel if he wanted to
engage one himself or to (1)  S.C.R. 344.
(2)  S.C.R. 729.
37 get his relations to engage one for him.
The only duty cast on the Magistrate is to afford him the necessary opportunity
for this purpose. It appears to us that neither of these two cases is
applicable to the case before us, because, in those cases, no question arose of
taking into account a provision laying down procedure for trial of cases such
as is contained in r. 37 of the Rules. These cases, no doubt, show that s. 340,
Cr. P.C. by itself, does not cast any duty on a court to provide a counsel at
State expense even when the offence triable is punishable with death; but that
is material, because the right, on which the appellant is basing his claim, is
sought to be justified under r. 37 of the Rules.
Learned counsel for the State, in view of
these two decisions, urged before us that we should hold that r. 37 of the
Rules was void as contravening the principle laid down by s. 340, Cr. P.C.,
explained in the two cases referred to above. We are unable to appreciate this
argument. Section 340, Cr. P.C., does not prohibit the appointment of a counsel
by the Court at State expense, though it does not prescribe such an appointment
as a mandatory direction to be carried out by the Court. Rule 37 of the Rules
only supplements the provision contained in s. 340, Cr. P.C., and is,
therefore, in no way in conflict with S. 340, Cr.
P.C., and it cannot be held that it is void
on any such ground.
We have already quoted above r. 37 of the
Rules in full.
The grievance on behalf of the appellant is
not that no counsel at all was engaged to represent him in the Court of
Session; but non-compliance with the Rule is urged on the ground than there was
breach of the last clause of that Rule, That clause requires that the counsel
appointed under the Rules shall be furnished with necessary papers free of cost
and allowed sufficient time to prepare for the defence.
In this case, the facts mentioned by us
earlier clearly show that Sri Shukla was appointed counsel for the appellant on
28th February, 1967, which was the date fixed for starting the trial, and the
trial was, in fact, started after his appointment on that very day. Thus,
sufficient time was not allowed to him to prepare for the defence of the
At one stage, information was attempted to be
given to this Court on behalf of the State Government on the basis of entries
in the register maintained for appointment of amicus curiae counsel that, in
fact, Sri Shukla had been appointed to represent the appellant on 18th February
1967. That register was sent for by us and it appears that this position was taken
on behalf of the State Government, because, at one place in that register, the
date showing appointment of Sri Shukla as counsel for the appellant was so
entered that it could be read as 18th February 1967 as well as 28th February
1967. There were, however, other entries in the register which clarified the
position and indicated that even that date must be read as 28th February 1967
and learned counsel for the State conceded that the appointment of the amicus
curiae counsel was, in fact, made on 28th February, 1967.
There is nothing on the record to show that,
after his appointment as counsel for the appellant, Sri Shukla was given
sufficient time to prepare the defence. The order sheet maintained by the
.,Judge seems to indicate that, as soon as the counsel was appointed, the
charge was read out to the accused and, after his plea had been recorded,
examination of witnesses began. The counsel, of course, did his best to
cross-examine the witnesses to the extent it was possible for him to do in the
very short time available to him. It is true that the record, also does not
contain any note that the council asked for more time to prepare the defence,
but that, in ;our opinion, is immaterial. The Rule casts a duty on the court
itself to grant sufficient time to the counsel for thispurpose and the record
should show that the Rule was complied with by granting him time which the
court considered sufficient in the particular circumstances of the case. In
this case, the record seems to show that the trial was proceeded with
immediately after appointing the amicus curiae counsel and that, in fact, if
any time at all was granted, it was nominal. In these circumstances, it must be
held that there was no compliance with the ,requirements of this Rule.
In this connection, we may refer to the
decisions of two of ,the High Courtís where a similar situation arose. In Re:
Alla Nageswara Rao, Petitioner(1) reference
was made to Rule 228 of the Madras Criminal Rules of Practice which. provided
for engaging a pleader at the cost of the State to defend an accused person in
a case where a sentence of death could be passed. It was held by Subba Rao,
Chief Justice as he then was, speaking for the Bench, that :
" a mere formal compliance with this
Rule will not carry out the object underlying the rule.
A sufficient time should be given to the
advocate engaged on behalf of the accused to prepare his case and conduct it on
behalf of his client. We are satisfied that the time given was insufficient
and, in the circumstances, no real opportunity was given to the accused to
defend himself." This view was expressed on the basis of the fact found
that the advocate had been engaged for the accused two hours prior to the
trial. In Mathai Thommen v. State(2), the Kerala High Court was dealing with a
Sessions trial in which the counsel was engaged to defend the accused on 2nd
August, 1958, when the trig was posted to begin on 4th August, 1958, showing
that (1) A.I.R. 1957 A.P. 505.
(2) A.I.R. 1959 Kerala 241.
39 barely more than a day was allowed to the
counsel to get prepared and obtain instructions from the accused.
Commenting on the procedure adopted by the
Sessions Court, the High Court finally expressed its opinion by saying :
"Practices like this would reduce to a
farce the engagement of counsel under rule 21 of the, Criminal Rules of
Practice which has been made for the purpose of effectively carrying out the
duty cast on courts of law to see that no one is deprived of life and liberty
without a fair and reasonable opportunity being afforded to him to prove his
innocence. We consider that in cases like this counsel should be engaged at
least some 10 to 15 days before the trial and should also be furnished with
copies of the records." In our opinion, no hard and fast rule can be laid
down as to the time which must elapse between the appointment of the counsel
and the beginning of the trial; but, on tile circumstances of each case, the
Court of Session must ensure that the time granted to the counsel is sufficient
to prepare for the defence. In the present case, when the counsel was appointed
just before the trial started, it is clear that there was failure to comply
with the requirements of the rule of procedure in this behalf.
Learned counsel for the State urged before us
that we should not hold that the award of, the sentence of death to the
appellant in this case is in breach of the fundamental right conferred by Art.
21 of the Constitution, because, he submitted, r. 37 of the Rules was not
enacted by any legislature and, consequently, it should not be held to be a
part of the procedure established by law.In this connection, he relied on the
view expressed by Kania, C.J., in A. K. Gopalan v. The State of Madras(1),
where lie held "No extrinsic aid is needed to interpret the words of
article 21, which in my opinion, are not ambiguous.Normally read, and without
thinking of other Constitutions,the expression 'procedure prescribed by
law'must mean procedure prescribed by the law of the State." This
Interpretation was given in order to exclude from the scope of Art. 21 rules of
natural justice which are not incorporated in any law. Proceeding further, he
dealt with the language of Art.31 where the expression used is "by
authority of law" and held "It is obvious that in that clause 'law'
must mean enacted law".
(1)  S.C.R. 88,111-12.
40 We do not think that, in expressing these
views, the learned Chief Justice intended to explain the full scope of the word
"law" as used in Art. 21. What he was concerned with was to examine
whether rules of natural justice could also be covered by that word in this
article and he held that this will not be justified. In later cases, the Court
has clarified the position and has held that the word "law" in Art.
21 includes subordinate legislation not enacted by the legislature, but
promulgated by the delegated authority in exercise of its statutory powers.
Thus, in Maqbool Hussain v. The State of Bombay & Connected Cases(1), the
Punjab Communist Detenus Rules, 1950 framed by the Government of Punjab under
section 4(a) of the Preventive Detention Act, 1950 were held to be covered by
the word "law". In Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha
and Others,(2) Rules made by the Legislature under Arts. 118(1) and 208(1) and
the privileges of each House under Arts. 105(3) and 194(3) were held to be law
justifying deprivation of personal liberty guaranteed by Art. 21. In the case
of Makhan Singh v. State of Punjab & Connected Appeals(3), the Defence of
India Rules made by the Central Government under section 3 of the Defence of
India Ordinance, 1962 were held to be "law" for purposes of Article
21. Thus, this Court has clearly laid it down that Rules made by a subordinate
legislative authority in exercise of its delegated power of legislation granted
by the Constitution or a Statute enacted by the legislature are "law"
for purposes of Art. 21, though, of course, it is always open to the person
affected to challenge the validity of those Rules. In the present case. we have
already held that r. 37 of the Rules has been framed in exercise of the powers
of the High Court under Art. 227 of the Constitution and section 554 of the
Code of Criminal Procedure, and is a valid Rule. In these circumstances, the
conviction of the appellant in a trial held in violation of that Rule and the
award of sentence of death will result in the deprivation of his life in breach
of the procedure established by law.
Learned counsel also urged that we should not
hold the conviction and sentence to be void when it is not shown that there was
any prejudice to the appellant by the failure of the court to observe the
procedure laid down by the Rule.
In our opinion, in such a case, the question
of prejudice does not arise when a citizen is deprived of his life without
complying with the procedure prescribed by law. We may, however, add that, in
this case, the facts indicate that there was, in fact, prejudice to the accused
caused by the non-compliance with the requirement of r. 37 of the Rules. The
two principal witnesses, Naziran and Khan Bahadur, were examined immediately
after the appointment of (1)  S.C.R. 730. (2)  Supp. 1 S.C.R. 806.
(3)  4 S.C.R. 797.
41 amicus curiae counsel and the application
presented on behalf of the accused on 10th March, 1967, to which we have
referred above clearly shows that the counsel felt that he had not been able to
cross-examine at least the sole eyewitness Khan Bahadur properly. That is why
he presented an application for recall of that witness. It is obvious that, in
rejecting that application, the Sessions Judge failed to notice that the
counsel had been appointed on the very day when that witness was examined and
sufficient time had not been granted to him to prepare the defence. In fact, we
feel that, in such cases, if sufficient time is not granted to the counsel to
prepare defence, prejudice must necessarily be inferred and the trial will be
As a consequence, we set aside the conviction
and sentence of the appellant. Since we are holding that the conviction is void
because of an error in the. procedure adopted at the trial, we direct that the
appellant shall be tried afresh for this charge after complying with the
requirements of law, so that the case is remanded to the Court of Session for
V.P.S. Appeal allowed and retrial order.